Probate - Medical negligence

[NOCAB]

Hello

I have a rather complicated situation that i hope someone can advise on.

Sadly i lost both of my parents last year, and as a result (with many other issue)s my brother/sister and I are no longer talking.

My brother is the executor for the will (appointed by application, not specified in the Will)

He is being very controlling with this process, and despite the fact that I have independently fought 2 NHS trusts (and won) concerning the care (or lack of) provided for my parents before they passed away, he is subsequently blocking further medical negligence claims that have been confirmed are justified by an independent solicitors, especially as both the PHO and GMC have agreed with my position, and the NHS have now acknowledged their failings.

He is therefore depriving the estate of further monies, which should come from legal action against the respective Trusts.

As a result, can I take action against him independently for failing to carry out his responsibilities as the executor of the will?

[Amethyst]

Has your brother given reasons for blocking further action regards the negligence claims ?

[NOCAB]

No he just doesn't want to pursue them

[Amethyst]

Ok. Has he been involved in the process to date ? Joint meeting with the solicitors regarding the ongoing? / new claims ? Is there concern maybe over costs against the estate in the case of a loss ? Or maybe something to do with the distribution of the estate being on hold until the negligence claims are finished ?

Peridot

[2222]

Two thoughts:-

The amounts that can be won in these cases, are they very substantial, such as to justify holding up the winding up of the estate, perhaps for years?

Could you offer to buy the right to take action in this matter from the estate? That could be on a straight cash basis or a percentage of what is won (up to 100% going back to the estate). The offer you make depends on your motives for wanting the action brought. If you make a substantial cash offer, it might be difficult for the executor to turn you down, providing you meet all the estate's legal expenses in assigning it to you.

[NOCAB]

its the principle as the payment amount would not be substantial, so no reason to put on hold before winding up the estate.

No costs against the estate as this is a no brainer and solicitors are doing this free of charge save their costs which they have agreed will come only if they win.

My brother has now been involved in the case.

He is just a control freak but actually has very little capacity for effectively managing the estate which has been shown to date (not relevant for this aspect though)

[leclerc]

Is it possible that he is grieving for the loss of his parents and that until the probate is complete, he may not be able to grieve properly? Furthermore, and I would add that we were pursuing a complaint against the NHS over the care of my father when he died over 15 years ago, one person said this to my mother: "it will not bring them back". Do you think that is how he may view this? Clearly this is a difficult situation and I hope you resolve this because ultimately, whether he hates you or loves you, he cannot get away from you because the same blood flows through you both.

[Peridot]

Hi again Robert,

it is is not a case of offering to pay the estate to allow you to make the claim.

The executor has a duty to maximise the estate and if there is a claim, consideration should be given to whether pursuing this is cost effective too. The likely damages and cost in money and time of making the claim are significant considerations.

Only the executor/administrator can bring the claim on behalf of the estate. They could be forced to or removed although this may be of little use if he has reasonably turned his mind to it and based on the likely value has taken the view there is little benefit to the estate other than delaying the final distributions and wi ding up of the estate.

Has your brother seen any of the correspondence from the lawyer suggesting a claim would be possible? If he provided a cogent reason why he was not prepared to make the claim would it make any difference to your current view?

I appreciate when things go wrong like this we want answers and to hopefully prevent it happening to others. In the first instance a formal complaint would have to be made to the trusts before any claim can even be considered. It can be very time consuming and stressful. I’d suggest it won’t help with the grieving process for any of the family.

Would any other option be a possibility such as a formal apology?

[2222]

1. its the principle as the payment amount would not be substantial, so no reason to put on hold before winding up the estate.

2. No costs against the estate as this is a no brainer and solicitors are doing this free of charge save their costs which they have agreed will come only if they win.

3. My brother has now been involved in the case.

4. He is just a control freak but actually has very little capacity for effectively managing the estate which has been shown to date (not relevant for this aspect though)

I numbered your points above and using that numbering:

1. The estate cannot be wound up until the case is concluded. You have just said that the amount involved is not very big. So, pursuing this case is going to hold everything up, perhaps for years, for no large amount of money. I think that an executor in that position is perfectly entitled to say that it is not in the interests of the estate to pursue the matter.

However, if you want to pursue the case yourself, I suggest you make a generous offer to the estate to buy the cause of action from the estate.

By the way, you say it's the principle of the matter. I'm sure that you've heard that that is a very bad idea indeed!

2. No case is ever without its risks.

3. I don't know what you mean by that. If you have somehow or other goaded your brother into taking on a case he does not want, he may decide to settle it at an early opportunity, on terms you are unhappy with, but that's the end of the matter. You could then possibly sue your brother over his handling of the case, but he'll be in a pretty strong position.

If the principle of the case really matters to you that much, you are far better off taking over the case and running it in accordance with your own wishes.

4. If he is really that ineffective, surely he's the last person you want running this case against the NHS?


Leclerc's comment above is absolutely correct. Suing the NHS for a modest amount of money is, unfortunately, not going to achieve much. They pay out thousands of these cases each year, but continue to make mistakes. The trouble with suing them is that, whilst the case is ongoing, it makes it harder for them to apologise and acknowledge the mistakes they made.

[Peridot]

Hi Robert,
Just to be clear to pursue any claim you have to have legal standing to do so. You can't effectively 'purchase' the right to make any claim, even as a beneficiary under a will. Only the person entitled to make the claim ie the claimant themselves, their executor/administrator or an appointed attorney can deal with this.

[NOCAB]

Hi everyone and thanks for your comments.

To summarise, the "hard work" re obtaining an admission of guilt from the Trusts involved has already happened and I have written support from the PHO and GMC that supports my position.

The appointed solicitor is therefore happy to take on the case/s on the basis that there is no charge if they loose, because they ultimately have very little risk.

The fact that this is ( as stated by the solicitor) almost a formality, the time to resolve is relatively predictable as there is no case to argue from the Trusts perspective.

What I want to understand is that if my brother does not take this on, despite now having a full account of all that has happened, he is effectively depriving the estate of further funds.

Could he not complete a partial distribution of the estate given that that the house is now sold, and deal with this matter separately or indeed allow me to continue to run with this as it seems I am the only one that seems to care about these matters anyway and has the knowledge and resolve to do so?

Re grieving for his parents, he couldn't even be bothered to attend his own fathers funeral, along with my disgusting sister, all because they wanted to move the funeral date to a time that was better for them as flight costs (they both live abroad) were cheaper!!!! They weren't their for their father at any point during his illness and have both just been bloody minded towards me. I was left make all of the funeral arrangements because they couldn't be bothered, and then when a date was chosen they became aggressive when I wouldn't change it, despite previously agreeing with them when it would be. My brother (the executor) actually threatened the funeral directors physically to the point that they called me and advised that if he came in again they would call the police !!

These are the kind of people I am dealing with, yet all I am trying to do is to ensure justice prevails where my parents are concerned.

[Peridot]

Hi again,

Technically the executor can make interim distributions provided the beneficiaries are aware that should any other issues arise requiring a payment, for example an unknown debt came to light, then potentially the beneficiaries could be pursued personally for the payment. However the decision is the executors I'm afraid. They don't have to make interim payments.

Do you have any idea the sort of damages the estate may receive in the event any claim were successful? Is it about care in the later stages of life causing premature death or treatment issues? I assume your parents were retired, what was their health like. I little more information on the situation surrounding the claim may help us guide you a little better.

As I mentioned previously it would be for the executor to deal with any claim I'm afraid so it would be a case of persuading him.

[2222]

Hi Robert,
Just to be clear to pursue any claim you have to have legal standing to do so. You can't effectively 'purchase' the right to make any claim, even as a beneficiary under a will. Only the person entitled to make the claim ie the claimant themselves, their executor/administrator or an appointed attorney can deal with this.

Okay, sorry to sidetrack. Could you please explain that a bit more. I know trustees in bankruptcy and liquidators assign cases all the time, so I'm curious why not an executor? Is it the nature of the case that prevents it?

I ask out of interest, but also because a solution along those lines would help sort the OP's issue out. Trying to persuade someone to litigate who doesn't want to is clearly an uphill battle.

[Peridot]

Hi both,

I agree with you 2222 trying to persuade a person to litigate when they do not feel it is justified for whatever reason is nigh on impossible. On the other hand an executor of an estate does have a duty to the beneficiaries as well as the estate, part of which is to consider any potential claims there maybe both by the estate and against the estate. However if it can be shown that they have considered the options and basically looked at the pros and cons and decided that this is not something to be pursued it is their decision. The difference in the scenarios you have posed is that this is an executor we are dealing with not a trustee (although executors often have the dual role but I don't want to muddy the water further )

If the beneficiaries disagree of course then it is possible to apply to the Court to deal with this by removal of the executor and I will get to that in a moment.

There are two possible types of medical negligence claim that arise after death.

1. A claim on behalf of the estate brought by the executors or administrator for recovery of loss suffered by the deceased

This claim arises under the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934). The claims that can be brought are for the pain, suffering and loss of amenity of the deceased. Loss of amenity refers to loss of enjoyment of life, for instance being unable to indulge in hobbies and interests. Pain and suffering arise where death is not instantaneous, for example where it has been caused by a disease with perhaps a lengthy period of suffering. In addition, general damages are recoverable for pain, suffering and loss of amenity, endured by the deceased as a result of medical negligence. No claim for future financial losses can be brought on behalf of the estate under this statute.

2. Claims by dependents of the deceased

This claim is made possible by the Fatal Accidents Act 1976 (FAA 1976). In order to make a claim on this basis the applicant must show that he or she was dependent or reliant upon the deceased in some way. It will not be enough for the applicant to be a beneficiary under the deceased’s will.

Assuming the OP is not a 'dependant' this prevents the 2nd option being used.

Once it is decided there is a claim that could be pursued then the only person who can bring the claim is the personal representative (executor or administrator)

It is not possible for an executor to simply transfer all their powers to another person, because their powers derive from their appointment initially under the Will and ultimately from the Court following the Grant of Probate being obtained. They are appointed executors not trustees (although they may have trustee powers in addition). It is possible for a replacement executor to be appointed, but this requires a court order following an application under section 50 of the Administration of Justice Act 1985.

Section 50 of the Administration of Justice Act 1985 provides:

‘Where an application relating to the estate of a deceased person is made to the High Court under this subsection by or on behalf of a personal representative of the deceased or a beneficiary of the estate, the court may in its discretion—
(a) appoint a person (in this section called a substituted personal representative) to act as personal representative of the deceased in place of the existing personal representative or representatives of the deceased or any of them; or
(b) if there are two or more existing personal representatives of the deceased, terminate the appointment of one or more, but not all, of those persons.’

The court has complete discretion to make an order. Basically in Robert's circumstances it would appear that he would need to ask the Court to remove the current executors to replace them. This is where the likely cost of making the application, the dispute that could ensue, the likely damages etc all come into play again and you have to ask whether the pursuit of this potential claim outweighs the loss to the estate of not doing so.

To see whether we can provide any guidance on this last point is why we need some further information on the actual facts of the potential claim.

[2222]

Thanks very much for explaining, Peridot.